Justia Real Estate & Property Law Opinion Summaries

Developers submitted an application for a Berkeley mixed-use development with 135 apartments over 33,000 square feet of retail space and parking, pursuant to Government Code section 65913.4, which provides for streamlined, ministerial approval of affordable housing projects meeting specified requirements. The site is the location of the West Berkeley Shellmound, “believed to have been one of the first of its kind at the Bay’s edge, built ca 3,700 B.C.,” part of a City of Berkeley Landmark. Shellmounds were “sacred burial sites for the average deceased mound-dweller,” slowly constructed over thousands of years from daily debris and artifacts. The city denied the application.The court of appeal ruled in favor of the developers. There is no evidence that the project “would require the demolition of a historic structure that was placed on a . . . historic register.” Remnants and artifacts could be disturbed, but that is not the issue under section 65913.4(a)(7)(C). With regard to tribal cultural resources, the project’s draft environmental impact report concluded impacts on the Shellmound would be reduced to “a less-than-significant level” by agreed-upon mitigation measures. Given the Legislature’s history of attempting to address the state’s housing crisis and frustration with local governments’ interference with that goal, and the highly subjective nature of historical preservation, the intrusion of section 65913.4 into local authority is not broader than necessary to achieve the legislation's purpose. View "Ruegg & Ellsworth v. City of Berkeley" on Justia Law

The Antelope Valley Groundwater Cases (AVGC) proceeding litigated whether the water supply from natural and imported sources was inadequate to meet the competing annual demands of water producers, thereby creating an overdraft condition. One of the competing parties, Appellant Tapia, individually and as trustee of a trust, claimed that he owned land overlying the aquifer. Settlement discussions ultimately produced an agreement among the vast majority of parties in which they settled their competing groundwater rights claims and agreed to support the contours of a proposed plan designed to bring the Antelope Valley Adjudication Area (AVAA) basin into hydrological balance. Tapia was not among the settling parties. Accordingly, before considering whether to approve the Physical Solution for the AVAA basin, the trial court conducted a separate trial on Tapia's unsettled claims and defenses.The Court of Appeal concluded that the Physical Solution's allocation of the "native safe yield" (NSY) does not violate California's water priorities; the allocations to correlative rights holders accord with California law; the Physical Solution's allocation of the NSY does not violate California's principles promoting the reasonable and beneficial use of water; and substantial evidence supports the judgment as to Tapia, and the Physical Solution is consistent with California law governing water priorities and the constitutional reasonable and beneficial use requirement. View "Los Angeles County Waterworks District No. 40 v. Tapia" on Justia Law

The Court of Appeal concluded that substantial evidence supported the Commission's decision to issue the cease and desist order requiring plaintiffs to remove structures that were built over a public accessway over the easement area. The court also concluded that the Commission did not violate plaintiffs' due process rights by imposing a $4,185,000 penalty, even though its staff recommended a smaller penalty, because the Commission had previously advised plaintiffs it could impose a penalty of up to $11,250 per day and the Commission staff specifically advised plaintiffs that the Commission could impose a penalty of up to $8,370,000. Accordingly, the court reversed the trial court's judgment remanding the matter to the Commission. The court also concluded that plaintiffs failed to show that Public Resources Code section 30821 is unconstitutional, either on its face or as applied to them. Furthermore, the penalty does not violate the constitutional prohibition on excessive fines. Therefore, the court reversed the superior court's judgment and affirmed the Commission's order. View "Lent v. California Coastal Commission" on Justia Law

The Supreme Court reversed the decision of the court of appeals affirming the order of the circuit court requiring Polk Properties, LLC and its sole member (collectively, Polk) to pay forfeitures for zoning violations, damages for the Village of Slinger's lost property tax revenue, and fees, holding that Polk did not abandon its nonconforming use.At issue was whether Polk abandoned the legal nonconforming use of the subject property after its zoning classification was changed from agricultural to residential. The circuit court enjoined Polk from using the property for agricultural reasons and imposed forfeitures, a monetary judgment for real estate taxes, and an order authorizing special assessments, special charges, and fees to be levied against Polk. The Supreme Court reversed, holding that Polk's use of the property constituted a lawful nonconforming use for which Polk could not be penalized. View "Village of Slinger v. Polk Properties, LLC" on Justia Law

Landowners Cash Aaland, Larry Bakko, and Penny Cirks, appealed orders granting the Cass County Joint Water Resource District (the “District”) a right of entry onto their properties to conduct surveys and examinations related to the Fargo-Moorhead Flood Diversion Project. The Landowners argued these surveys and examinations are beyond the scope of N.D.C.C. 32-15-06. After review, the North Dakota Supreme Court reversed, concluding the District’s right of entry exceeded the limited testing permitted under the statute. The matter was remanded for a determination on attorney’s fees and costs. View "Cass County Joint Water Resource District v. Aaland, et al." on Justia Law

Before seeking damages for a governmental taking of property through inverse condemnation, the property owner must generally submit more than one proposal to the permitting authority seeking zoning variances or reducing environmental impacts to the extent necessary to allow at least some economically beneficial or productive use of the property. In this case, the Court of Appeal held that multiple applications are not required where the permit denial makes clear that no development of the property would be allowed under any circumstance.The court affirmed the trial court's judgment and fee award in this inverse condemnation action. In this case, the trustee submitted plans to build an ocean-front residential property, but the planning commission rejected the development permit. The court concluded that substantial evidence established that the city would not permit any development below the 127-foot elevation, and that the limited area above that elevation was unbuildable. Therefore, submission of an additional application would have been futile. Furthermore, substantial evidence establishes that it would have been futile to submit modified plans because the agency's decision was certain to be adverse. Finally, the court rejected the city's contention that the trustee failed to litigate his writ petition to conclusion because he did not argue the Public Resources Code section 30010 claim in those proceedings. View "Felkay v. City of Santa Barbara" on Justia Law

The State of Alaska claimed the right under Revised Statute 2477 (RS 2477) to clear land and permit the use of boat launches, camping sites, and day use sites within an alleged 100-foot right of way centered on a road on land belonging to an Alaska Native corporation, Ahtna, Inc. Ahtna sued, arguing that its prior aboriginal title prevented the federal government from conveying a right of way to the State or, alternatively, if the right of way existed, that construction of boat launches, camping sites, and day use sites exceeded its scope. After years of litigation and motion practice the superior court issued two partial summary judgment orders: (1) holding as a matter of law that any preexisting aboriginal title did not disturb the State’s right of way over the land; and (2) holding as a matter of law that the right of way was limited to ingress and egress. To these orders, the Alaska Supreme Court concluded the superior court did not err, therefore affirming both grants of partial summary judgment. View "Ahtna, Inc. v. Alaska, Department of Transportation & Public Facilities, et al." on Justia Law

The Willow property, south of the Apartments, contains a duplex, a concrete parking area, and a large undeveloped area in the rear. In 1964 the then-owners of both properties obtained a variance from Burlingame that allowed four off-site parking spaces for the Apartments to be located on the Willow property. They never expanded the Apartments as planned. The variance became void. The properties changed hands several times, remaining jointly owned. In 2005, both properties were acquired by Shiheiber, who allowed tenants of the Apartments to use the Willow property for access, parking, storage of garbage, and recreational purposes. In 2011, the properties ceased to be under common ownership. The Bank took title to the Apartments; Husain took title to Willow, aware that the Bank claimed a prescriptive easement. Tenants in the Apartments continued to use the Willow property.Husain sued the Bank to quiet title. The Bank cross-complained for a prescriptive easement. The trial court entered judgment for the Bank. The court of appeal affirmed, rejecting an argument that the use of the Willow property was permissive. The Bank never requested or received permission to use the Willow property, and simply used the property in a manner that was open, notorious, continuous, and hostile for more than five years. View "Husain v. California Pacific Bank" on Justia Law

Plaintiff David Demarest filed suit against the Town of Underhill, seeking a declaration that he had a right of vehicle access over a Town trail, and appealing the Selectboard’s decision denying his request for highway access to a proposed new subdivision on his property. The superior court granted summary judgment in favor of the Town, concluding that plaintiff’s request for declaratory relief was barred by claim preclusion and that the Town acted within its discretion in denying the permit. On appeal, plaintiff argued the trial court erred in applying claim preclusion, and that the Town exceeded its authority under the statute in denying his request for access. Finding no reversible error, the Vermont Supreme Court affirmed judgment. View "Demarest v. Town of Underhill" on Justia Law

The Supreme Court reversed the judgment of the trial court reversing the order of the City of Bloomington Board of Zoning Appeals (BZA) affirming the decision of the City of Bloomington citing UJ-Eighty Corporation for a zoning violation, holding that there were not constitutional violations in this case.UJ-Eighty owned a fraternity house at Indiana University (IU) in Bloomington that was located within a district zoned by the City to permit limited residential uses. UJ-Eighty leased its house to an IU-sanctioned fraternity, but before the lease ended, IU revoked its recognition and approval of the fraternity, which meant that no one could live there. Bloomington cited UJ-Eighty for a zoning violation when two residents remained in the house. The BZA affirmed. UJ-Eighty appealed, arguing that the City impermissibly delegated its zoning authority to IJ by allowing it unilaterally to define fraternities and sororities. The trial court agreed and struck down the ordinance's definition of fraternities and sororities under the state and federal constitutions. The Supreme Court reversed, holding that Bloomington did not violate the Fourteenth Amendment because the ordinance was not an impermissible delegation of power or a denial of due process. View "City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corp." on Justia Law